FWC ruling shows Uber Eats worker fails six‑month regular‑work test
Uber Eats deactivation case highlights how Fair Work is applying new unfair deactivation laws for employee‑like workers.
On 2 December 2025, the Fair Work Commission dismissed an unfair deactivation claim brought by an Uber Eats delivery worker after finding he did not meet the six‑month regular‑work requirement under unfair deactivation provisions that commenced on 26 August 2024.
Kutay Dugan applied for an unfair deactivation remedy under section 536LU of the Fair Work Act 2009 against Portier Pacific Pty Ltd Trading AS Uber. The case was heard by Commissioner Durham in Brisbane, following a Microsoft Teams hearing on 28 October 2025 that focused on a jurisdictional objection raised by Uber.
The key question was whether Dugan was “protected from unfair deactivation” under section 536LD of the Act. To fall within that protection, an employee-like worker must, at the time of deactivation, have been performing work through the digital labour platform on a regular basis for a period of at least six months.
Uber argued that Dugan did not satisfy this requirement based on his actual work pattern on the Uber Eats app in the six months before his deactivation.
Commissioner Durham treated the provision as a point‑in‑time test. The decision explains that paragraph 536LD(c) is concerned with the period of work immediately preceding deactivation, not any earlier or cumulative periods. The decision also records that, under transitional provisions, any work performed before 26 August 2024, when the unfair deactivation provisions commenced operation, could not be counted toward the six‑month period.
Dugan’s account was suspended on 31 May 2025 and deactivated on 10 June 2025. From 2 December 2024 to 10 June 2025, he performed paid work on the app on an average of 1.77 days per week and 27.16 hours per month. Over that same period, he performed no paid work at all in 11 of the 26 weeks.
Dugan submitted that he had a long‑term work history with Uber and had been continuously engaged on the platform since May 2020. He said that, other than a three‑week trip to Turkey in February 2025, he was unable to work from December 2024 to 20 March 2025 because of significant mechanical issues with his vehicle. He described this as an unavoidable period of absence rather than a voluntary break. He further submitted that, after purchasing a new vehicle on 14 March 2023, he resumed a more regular pattern of work, averaging 3.6 days per week for the 11 weeks commencing 17 March 2025 through to 26 May 2025.
The Commission considered the Digital Labour Platform Deactivation Code, which provides that an employee-like worker is taken to perform work on a regular basis if they complete, on average, 60 hours of paid work each month, or paid work on three days of each week. The Code also states that a worker may still be taken to perform work on a regular basis even if they elect not to work in some weeks.
However, Commissioner Durham was not satisfied that Dugan’s non‑performance of work between December 2024 and 20 March 2025 was a valid break in engagement as contemplated by the Code. The decision notes that, apart from evidence about the purchase of a new vehicle, there was no substantial evidence showing he was unable to work for the duration of that period.
Consistent with an earlier decision in Priyansh Singh Panwar, the Commission considered that Dugan had performed work for Uber on a regular basis in two separate periods: from 26 August to 2 December 2024 and from 20 March to 31 May 2025. These separate periods, however, could not be added together to form a six‑month period.
The Commission ultimately concluded that Dugan was not protected from unfair deactivation because, at the time of his deactivation, he had not been performing work on a regular basis for a period of at least six months. The jurisdictional objection was upheld, and his application was dismissed.
